The Register of Real Estate Property, Property Registry or Land Registry, deals with the registration of the domain and other real rights over real estate. For registration purposes, Spain is divided into districts, called Mortgage Districts.Each Mortgage District has a Property Registry, in charge of a Registrar, integrated into the Association of Property Registrars and Mercantile of Spain. The Property Registries of Spain depend on the General Directorate of Registries and Notaries, which is part of the Ministry of Justice.
The Registries are public for those who have known interest in ascertaining the status of real property or registered real rights. The interest is presumed in any authority, employee or public official acting because of his position or office.
Forms of publicity.
The simple note is purely informative and does not attest the content of seats, without prejudice to the responsibility of the Registrar.
Certifications are verbatim copies of the contents of the registry, which are the means of irrefutably prove the mortgage situation of the estates and rights. A certification is requested in writing on paper. It must be requested in person, in the Property Registry corresponding to the mortgage district. Nevertheless, the possibility of obtaining telematic Certifications has already been implemented, with a recognised electronic signature of the Registrar. The request must be made through the web page of the Registrar’s College.
Registered Real Rights
The inscribable real rights are the domain, usufruct, use, habitation, easements, censuses, mortgage, the right of withdrawal, and other real rights.
The Spanish Property Registry does not collect a closed list of real rights, admitting what is called an open number system. However, the creation of new real rights figures in practice is difficult, since they should meet the structural requirements of real rights.
Other registrable rights.
The Real Estate Registry allows the registration of other rights, even if their real nature is not always apparent.
Thus, it permits the registration of: the horizontal property statutes; the leases, subleases, assignment and subrogation of the same on real estate; The right of return tenancy; Administrative concessions and mortgages on them; Acts deriving from forced expropriation or from regulatory constraints; Prohibitions to dispose; and the causes of resolution of registered rights.
And in terms of urban planning, are also inscribed: definitive acts of planning execution, as they affect specific registered estates; Assignments of urban planning; transfer of rights of urban development; conditions imposed on urban planning licenses; initiation of administrative proceedings of urban planning discipline, and the filing or resolution of legal remedies, among others.
Other registrable acts.
They are also registrable judgments that affect the capacity of natural or legal persons and which are derived from bankruptcy, provided that they affect real property or real rights over them they hold. Also, through the so-called preventive annotations, provisional situations that affect real rights over real estate can be registered in the Registry. Thus, for example, judicial claims on registrable rights; Embargoes; Non-definitive sentences; Prohibitions to dispose of ordered judicially; Hereditary right, and similar acts.
The Property Registry and the principle of legal certainty are closely related, the clearest manifestation of which is the principle of public faith. This is contained in Article 34 of the Mortgage Law and aims to maintain its acquisitions to certain registered holders with the requirements of that Article 34.
The principle of legality.
By this principle, every title that it is entered in the Register is subject to prior examination, also called verification, so that only have access to the registry valid and perfect titles; In other words, the principle of legality consists in the preventive analysis that the registrar performs with respect to the lawfulness of the act or contract that is requested to register, as well as the examination of the compatibility of these acts with the current legal regulations and the registration seats and existing ones.
The principle of priority.
In recognizing certain rights, the oldest ones have priority over the later ones; It is based on the legal apothem «prior Tempore, potior iure» (First in time, better in law); So according to this Principle, the rights granted by the registrations, are determined by the priority in the time of the inscription. This priority in time is determined by the date, day, hour and fraction of time in which a certain title is presented to the registry.
The principle of publicity.
Under this principle, it is presumed that everyone is aware of the content of the inscriptions; that is, no one can claim ignorance or disregard the content of registration entries.
The principle of legitimation.
According to this principle, it is presumed that the content of the inscriptions is true and produces all its effects while these not be canceled or rectified.
The principle of public faith registration.
By this principle, legal acts that have occurred relying on the register contents are protected; That is, it protects the third parties acquiring rights, based on the information contained in the Registries.
The principle of the successive track.
Also known as «Continuous Track», by this principle, no registration, except the first, will be carried out without the previously recorded right being registered.
The Principle of specialty.
Also called «Determination Principle», the purpose is to individualise the rights registered in the Registries, concerning property and persons. By this principle, each entry is made in separate parts.
The principle of opposability.
The purpose of this principle is to prevent the registration of rights that oppose or may be incompatible with another right previously registered; Although the right to be registered is dated before the registered right.
When applies, registration is an indispensable requirement for the transfer or creation of a real right to take place. In this case, the inscription perfects the transmission or constitutes the real right.
An example of this type of inscription is the Mortgage, because if it is not registered in the corresponding registry, even if it has been raised to Public Deed, there is no security right.
The existence of the title for the transmission of the real right is sufficient. It recognises the pre-existence of real rights, which are noted for their publicity and other effects established by law. It is to publish a change occurred, regardless of registration.
The general principle is the need of a public title to register in the Land Registry.
Public documents may be notarial, judicial or administrative. Private documents are exceptionally allowed such as an instance to register the inheritance of sole heir, for the correction of certain defects, or for the preventive annotation of refractory credits.
The procedure is requested. Except for exceptions, it is initiated by the interested party. To do this, the document must be presented in the Register, with a Presentation Seat in the Daily Book, whose duration is sixty working days. The presentation can be done telematically, in person, by mail, or by fax (in which case the document must be submitted physically within 10 business days).
The Registrar will proceed to the qualification of the document, under his responsibility, within a maximum period of fifteen business days. If the qualification is positive, the registration is practised. Once entered, the document is returned to the presenter, with a footnote, signed by the Registrar, to have been dispatched.
If the Registrar notices any defect in the title, will decide the No Entry. The Registrar’s Resolution must indicate the Facts and Foundations of Law, for which he decides not to register. And must notify the presenter, and the notary authorising the Deed, or judicial or administrative Authority from which the title comes.
The note of presentation will be automatically extended by the Registrar, for sixty days from the last of the notifications.
Administrative appeals against the qualification of the Registrar.
Against the Registrar’s pronouncement that decides not to register a document, the interested party may choose between correcting the defect – if it can be remedied – or appealing the Registrar’s decision. The means to challenge are three:
– Request a qualification by Substitute Registrar.
– To urge the so-called Governmental Appeal to the General Directorate of Registries and Notaries. This must be resolved within three months; And if it does not do so within that period, the Appeal shall be deemed dismissed. The resolution that dictates, or the alleged, can be appealed before the courts.
– Settle Verbal Judgment before the Court of First Instance of the provincial capital in which the Registry of Property is located.